concurring.
The majority resolves this case based upon a quote from Telshow v. State, 964 S.W.2d *541303, 307-08 (Tex.App. — Houston [14th Dist.] 1998, no pet. h.):
We do not believe it is asking too much of defense counsel to merely demonstrate, through questions put to a witness, the nonexistence of a warrant at the time of the arrest. See Russell, 717 S.W.2d at 9 (noting “defendant must “produce evidence that defeats the presumption of proper police conduct and therefore shifts the burden of proof to the State”)(emphasis added). Error relating to an illegal search or seizure must be based on an affirmative showing, not mere speculation or innuendo. To allow here, as Telshow urges, the burden of proof to shift to the State without the requisite affirmative showing of the absence of a warrant would create a de facto exception, based on the totality of the facts at the hearing, to the burden of proof in a hearing on a motion to suppress evidence. In essence, Telshow seeks to shift the initial burden of proof when the testimony at the suppression hearing circumstantially demonstrates the defendant was arrested without a warrant. We cannot accept this proposed erosion of the burden of proof at a suppression hearing. The defendant has the burden to prove the seizure occurred without a warrant, but Telshow failed to produce any evidence establishing that fact. Thus, the burden never shifted to the State to either produce evidence of a warrant or prove the reasonableness of the search or seizure pursuant to one of the recognized exceptions to the warrant requirement. This court addressed the same argument in White [v. State, 871 S.W.2d 833 (Tex.App. — Houston [14th Dist.] 1994, no pet.) ]. In White, this court rejected the argument that absence of a warrant, which shifts the burden of proof, can be demonstrated by circumstantial testimony. See 871 S.W.2d at 836. We agree with, and are bound by the White opinion. See also Johnson v. State, 834 S.W.2d 121 (Tex.App. — Houston [1st Dist.] 1992, pet. refd) (holding that burden never shifted to State despite appellant’s argument that testimony at the suppression hearing demonstrated circumstantially he was arrested without a warrant).
Only the Houston courts have adopted this rule that the absence of a warrant must be established by direct evidence. Telshow, 964 S.W.2d at 303; Hogan v. State, 954 S.W.2d 875, 877-78 (Tex.App. — Houston [14th Dist.] 1997, pet. ref'd); White v. State, 871 S.W.2d 833 (Tex.App. — Houston [14th Dist.] 1994, no pet.); Highwarden v. State, 846 S.W.2d 479 (Tex.App. — Houston [14th Dist.] 1993, pet. dism’d, improvidently granted); and Johnson v. State, 834 S.W.2d 121 (Tex.App. — Houston [1st Dist.] 1992, pet. refd). All of these, to some degree, rely upon Russell v. State, 717 S.W.2d 7 (Tex.Crim.App.1986). Interestingly it appears the non-warrant aspect of Russell was established by less than direct evidence. Otherwise, why would the court have said: “[fjrom Officer Graves’ testimony it is obvious that no warrant was obtained.” Id. at 10. (Emphasis added).
From the majority’s recitation of the facts, with which I have no quarrel, it is obvious Officer Degner did not obtain a warrant for Sims from the time Degner arrived at the parking lot until Degner informed Sims that he was under arrest for being intoxicated on a licensed premises and subsequently arrested him for that offense. Yet the Houston courts and the majority installs the prophylactic requirement that the defendant inquire whether or not the officer had a warrant. The law does not require a useless thing to be done. See Allen v. State, 552 S.W.2d 843, 846 (Tex.Crim.App.1977). In this instance, to require this inquiry, albeit a simple one, when the answer is obvious, is to require a useless thing. We should not yield to the temptation to affirm a criminal conviction on a superfluous issue especially when the substantive issue yields the same result.
Article 14.01(b) of our Code of Criminal Procedure allows a peace officer to arrest an offender without a warrant for any offense committed in his presence or within his view. Tex.Code Crim. Proo. Ann. art. 14.01(b) (Vernon 1977). Based upon Degner’s experience and Sims’ actions, Degner had probable cause to arrest Sims for being intoxicated on a licensed premises and Sims’ subsequent resistance provided additional grounds for Sims’ arrest. Therefore, the resulting search pursuant to a lawful arrest, was a reasonable, *542constitutional one and the trial court did not err in denying the motion to suppress.
For the reasons stated, I concur’ in the result.